Mary Ashford

The Wager of Battle

The tragedy of Mary Ashford occupies a unique position in the chronicles of crime. It was not a motiveless murder, for the object of the miscreant was plain enough and the death of his victim was the only method by which he could escape the penalty of his previous offence. The case stands out beyond all others because its sequel involved the revival of a law which dated from feudal times​—​decision by Wager of Battle.

It was Whit Monday​—​a holiday always looked forward to by country lads and lasses and marked by much merrymaking. Among others, Daniel Clarke, the landlord of an inn known as Tyburn House, at Cudworth, a village just outside Birmingham, made preparations for holiday festivities, and his big room was crowded with joyous villagers, who danced to their hearts’ content to the music of a fiddle.

The prettiest girl there was Mary Ashford, the niece of a farmer named Colman, living at Langley Heath, a town situated a few miles from Birmingham. She was full of life and gaiety and never wanted for a partner.

Every young man in the room was anxious to have a dance with pretty Mary Ashford, but the favoured swain was undoubtedly Abraham Thornton, a farmer’s son, of Erdington, an adjoining parish.

It was the first time Abraham Thornton and Mary Ashford had met, but from an acquaintance with her sister, of which he boasted during the evening to a companion, it was clear that he knew something about her. To understand clearly the various steps leading up to the mystery of that fateful night, it is necessary to say what were Mary Ashford’s arrangements in reference to this dance.

Early in the day she had to go to Birmingham on some business for her uncle, and to save time she made her holiday dress into a parcel and left it at the house of a Mrs. Mary Butler, an old lady with whom lived a friend of Mary Ashford’s named Hannah Cox, who was also going to the dance.

Mary returned from Birmingham at six o’clock, dressed herself at Mrs. Butler’s, and she and her friend Hannah, laughing and talking, went off to the dance.

The time passed rapidly. Thornton, like most village swains, was ardent in his love-making, and Mary was not averse to receiving his attentions. Hannah Cox, who had not so many admirers as her friend, was the first to discover how the night was advancing.

She went to look for Mary, and found her talking with Thornton and evidently absorbed in what the young man was saying.

“Mary!” said she, “do you know what the time is? We ought to be home!”

“I think I ought to go,” said Mary, but with eyes which seemed to say, “If you ask me, I shall stay!”

“One more dance, anyhow?” said Thornton.

Hannah consented to wait for one more, and only one. But one was not enough, either for Thornton or Mary; and Hannah Cox, tired out, left the dancing room just before midnight and waited outside, hoping that Mary would soon follow her. Hannah remained a quarter of an hour chatting to a young man named Carter; but Mary did not come. At last Carter, at Hannah’s request, re-entered the house, found Mary, and told her that her friend had been outside waiting for her a quarter of an hour in the cold.

Mary, at this, made up her mind to join her friend, left the dancing room, and in a few minutes found Hannah. Mary was then accompanied by Abraham Thornton.

Mary Ashford and Thornton started homewards, followed by Hannah Cox and Carter; but after proceeding some distance, Carter wished his three companions “Good night,” and returned to Tyburn House.

The old saying, “Two are company, three are none,” proved true in the present instance, for Mary Ashford and Thornton, without any apology, left the superfluous Hannah to get home how she could. The last Hannah saw of the two was near a turning by an inn on the road.

Hannah, naturally feeling annoyed and slighted, walked on, and reached her home about one o’clock, and, thoroughly tired out with dancing and walking, got into her bed and soon fell asleep.

About four o’clock she was awakened by someone knocking loudly at the door. Naturally surprised and vexed at being disturbed by so early a visitor, she looked out of the window and saw her friend Mary Ashford.

She at once ran down and let her in. Mary had the clothes on she wore at the dance, and in reply to the natural inquiries of Hannah as to the reason of this, she explained that, instead of walking to her uncle’s at Langley Heath, she had gone to her grandmother’s, who lived near Tyburn House, and had slept there, and now wanted to change her things and go home to her uncle’s.

Whilst engaged in changing her clothes and making up a bundle of the things taken off, she chatted away, and seemed delighted with the previous night’s fun; and at a quarter-past four o’clock Mary Ashford left the cottage, carrying her little parcel.

From what was discovered afterwards, it would seen that the unhappy girl not only told her friend a deliberate untruth but, in addition, suppressed the truth.

She had not slept at her grandmother’s, and she had spent the whole time, between Hannah losing sight of her and her arrival at the cottage at four o’clock in the morning, prowling about the fields with Abraham Thornton.

After leaving Mrs. Butler’s cottage, Mary was seen by two men named Dawson and Broadbent. The latter noticed her at half-past four crossing the London and Chester turnpike road, going in the direction of Langley Heath.

From that moment she was never again seen alive.

At the same time​—​half-past four o’clock​—​Thornton was spoken to by a milkman named Jennings, and was at the same time and place seen by three other persons​—​Martha Jennings, Jane Heaton and John Holden. A mile further on he stopped and chatted with a man named John Haydon, at Castle Bromwich. This occurred at ten minutes to five, and from that point Thornton undoubtedly went straight home to his father’s house. He certainly was not seen in company with Mary.

On the same morning, at seven o’clock, a workman was going along a path by the side of a field, a mile and a quarter from Mrs. Butler’s cottage and in the direction of Langley Heath, when he noticed on the slope of a broad ditch a bonnet, a pair of shoes, and a bundle. He stopped and looked round, in expectation of discovering the owner of the things, but seeing no one to whom the property could belong, he thought the better thing would be to go to a mill in the neighbourhood and give the alarm, as the probability was either that some woman had been murdered or had committed suicide.

He accordingly went to the mill, obtained assistance, and the ditch was dragged.

After a few minutes’ search the body of a young woman was brought to the bank. It was that of Mary Ashford.

On examining the body, marks of a human hand were found between the shoulder and elbow of each arm, showing that the girl had been recently grasped and held with violence.

The report of the discovery spread with great rapidity in all directions, and in a short time Abraham Thornton was arrested on suspicion, he having been the last seen in the poor girl’s company prior to her death.

Abraham Thornton was tried for the murder of Mary Ashford at the Warwick Assizes, and the theory of the prosecution was that Thornton had murdered the girl and thrown her body into a ditch; and in support of this, it was proved there were footprints in the field in which the ditch was situated which exactly corresponded with Thornton’s boots, and, beyond that, even the nails in them.

To this Thornton replied that he admitted the marks in the ground were probably his footprints, as he had been in the field with the unfortunate girl during the night.

A significant fact was that though footprints identified as those of Mary were found intermingled with those believed to be Thornton’s in the field, not any marks of the girl’s boots could be found near the ditch. The inference was that the murderer had carried her from the spot where possibly she became insensible and unable to utter a cry, and had thrown her into the ditch.

It was proved that duckweed was floating on the surface of the ditch where the body was found, and at the post-mortem examination duckweed was found in the stomach, which proved that Mary was alive at the time she entered the water.

It was contended on behalf of Thornton that as Mary Ashford left Hannah Cox at a quarter-past four, and Thornton had been seen by Jennings and three others at Holden’s farm, which was two miles and a half from the ditch in question, at half-past four, it was impossible for him to have had any hand in her death, as that only allowed a quarter of an hour for Mary to go a mile and a quarter to the ditch where she was murdered, and for Thornton to tramp two miles and a half.

One curious point did not attract the attention the prosecution should have paid to it. Mary Ashford’s clothing was much bloodstained, but that of Thornton was not examined. Dale, the constable who took him into custody, had spirited it away! For this unwarrantable action Dale was dismissed from the force.

The guilt of Thornton was not clearly made out. His counsel fought hard; the judge summed up, and cautiously; and the jury, giving the young man the benefit of the doubt, found him not guilty.

This by no means satisfied the public. It had made up its mind that Thornton was guilty, and as he issued from the court he narrowly escaped with his life, for the mob set upon him on all sides.

A tremendous excitement arose. The case, pro and con, was hotly discussed everywhere, and eventually an astute lawyer, having an eye to his own pocket, conceived a way by which Thornton might be tried again, although the law of England says that a man cannot be tried a second time for the same offence. What he did was to rake up a long-forgotten statute not repealed, by which a legal matter could be decided by what is called “Wager of Battle,” which, like a good many other customs, was introduced into this country by the Normans. Although it was surrounded by many technicalities, it can be briefly described as follows:

Where a man has been tried and acquitted for murder, the heir of the murdered person could insist upon the accused man being again arrested with the object of having him tried again by fighting. For this purpose the heir of the murdered one charges the defendant with the murder, which, having been found not guilty, he, of course, denies. He follows the assertion of his innocence by throwing down his glove, and declaring himself ready to fight to prove the truth of his statement.

The challenge was accepted by the heir, and unless he had something to allege showing that the defendant was not entitled to the great privilege and honour of fighting to prove his innocence (which was the course adopted in Thornton’s case), a day was appointed by the court for the combat.

On the day fixed for the battle the parties met in the presence of the judges; each man was armed with the prescribed weapons, and having taken a solemn oath that he had not made any private arrangements with the devil to render him any assistance, the two combatants set upon each other with all the force they could muster, whilst the judges, attired in their robes, looked on, and the rabble applauded or hooted as their inclination prompted.

If the defendant was defeated and not killed, that was considered proof positive of his guilt, and the judges sentenced him to be hanged forthwith. If, on the other hand, he was victor, or kept up the combat until starlight, or till his accuser cried “Craven!” he was declared innocent, and was not only discharged, but his accuser was ordered to pay him damages for having falsely accused him.

It seemed absurd that such a barbarous custom should be actually legal in the nineteenth century; but there it was, and William Ashford, the brother of the murdered girl, proceeded against Thornton for wager of battle, and Thornton was again arrested by the Sheriff of Warwick and brought to London.

He was arraigned before the Lord Chief Justice in Westminster Hall, and, when charged by Ashford with having murdered his sister, took off his glove, according to the ancient custom, and threw it on the floor, declaring himself ready to fight. Ashford was, however, only a stripling, and Thornton a powerful man, and the idea of a combat was preposterous. But the astute solicitor did not mean that Ashford should fight. The whole thing was a trick by which Thornton should be tried a second time.

This the judge would not have. If Ashford wanted to put the old law into force it was open to him to fight, but he could do no more. The end was that Ashford declined the combat, proceeded no further, and Thornton was again discharged.

In the following year Parliament passed an Act by which the ridiculous “Wager of Battle” was put an end to, and it ceased to encumber the Statute Book.

From that day to this the death of Mary Ashford has remained a mystery. Quite a shower of pamphlets came out at the time, half of them proving beyond the shadow of a doubt that Thornton was guilty; the other half proving quite as satisfactorily that he was innocent. Anyway, her grave is still pointed out in Sutton Coldfield churchyard, and no doubt the villagers are ready with the moral lesson which her fate is supposed to show to flighty young ladies who go to village dances at public houses, take a little too much to drink, and walk about with young men in the small hours of the morning.